Many employers have been surprised by recent rulings that two common employment policies run afoul of the National Labor Relations Act (“NLRA”).  These rulings apply to policies covering all non-management employees, including employees who are not covered by a collective bargaining agreement.  Based on a legitimate interest in preserving proprietary business information, confidentiality, and privacy, many employers have adopted social media policies limiting what employees may post on Facebook or Twitter about their work, their employer, or their co-workers.  Based on privacy considerations, employer procedures for investigating sexual harassment and other complaints often place restrictions on what employees may reveal to their co-workers or others about the allegations.  According to recent decisions, however, both policies may violate Section 7 of the NLRA, which permits employees to engage in “concerted activity” for “mutual aid and protection.”

Section 7.  It is well established under the NLRA that employees may confer with one another about their wages and other terms of employment and may take “concerted” action in an effort to improve their working conditions.  Employees (but not managers) are protected by Section 7 of the NLRA, whether or not they are members of a union. But employers rarely face Section 7 issues since claims under Section 7 must be asserted in charges filed with the National Labor Relations Board (“NLRB”), and few employees do so.

Overbroad Social Media Policies.  In an effort to protect their image, reputation, and proprietary information, as well as the morale of their employees, many employers have issued comprehensive social media policies governing what employees can and cannot post on social media websites or blogs.  These policies have come before the NLRB in a number of cases involving employees disciplined or terminated for posting comments on Facebook or Twitter about their employer or co-workers in violation of the employer’s social media policy.

The NLRB has struck down a number of these social media policies.  At issue is whether employer policies are so sweeping in their prohibitions that they bar the kinds of activity protected by Section 7, such as the discussion of wages or working conditions among employees, or could be reasonably construed by employees to do so.  The Board has distinguished between comments that amount to “protected concerted activity” and mere gripes not made in relation to group activity among employees, although the line is hardly a bright one.  Thus, the Board found in one case that it was an unlawful employment practice to terminate three employees who posted messages on Facebook criticizing a manager for not being responsive to safety concerns expressed by the employees, and the employer was ordered to rescind portions of the policy on which the discipline was based. Design Technology Group, LLC (April 19, 2013).  And in Karl Knauz Motors, Inc. (September 28, 2012), the Board ordered an employer to rescind its social media policy, which contained, among other statements, a provision requiring employees to be “courteous, polite, and friendly” to customers and fellow employees and not to use “language which injures the image or reputation” of the employer.  The NLRB held that the “courtesy” rule violated the NLRA because employees could “reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language’ which injures the image or reputation of the Dealership as encompassing Section 7 activity.”

There are limits to Section 7 rights, however. A recent advice memorandum from the Board’s General Counsel concluded that an employee’s profanity-laced comments about the company and her supervisor in a private group message on Facebook in which she allegedly told her supervisor to “back the freak off” and suggested that the employer could “FIRE ME…Make my day” constituted unprotected “boasting and griping.”  Advice Memorandum in Tasker Healthcare Group, d/b/a Skinsmart Dermatology (May 8, 2013).

Confidentiality of Complaint Investigations.  Enforcement Guidance issued by another federal agency—the EEOC—directs employers conducting investigations of workplace harassment to assure complainants that they “will protect the confidentiality of harassment complaints to the extent possible.”  Employers routinely adopt policies asking employees who are part of workplace investigations, either as complainant or witness, to keep such investigations confidential.  Such policies help ensure the integrity of investigations, prevent workplace retaliation for participation in investigations, protect the privacy of complainants, and foster an environment where employees will readily report harassment concerns.

Nonetheless, an NLRB judge in The Boeing Co., case no. 19-CA-089374 (July 26, 2013), held that two notices issued by Boeing violated Section 7 of the NLRA:  one “directing” employees not to discuss workplace investigations with each other and a subsequent notice “recommending” that employees not discuss such investigations with other employees.

The Boeing decision relies on last year’s NLRB ruling in Banner Health System, d/b/a Banner Estrella Medical Center, case no. 28–CA–023438 (July 30, 2012), which prohibits blanket confidentiality rules whose potential (if unintended) effect may be to chill or prohibit the exercise of protected Section 7 rights.  While acknowledging that blanket confidentiality rules serve some useful purposes, the Boeing judge concluded that he was bound to follow Board precedent.  Although the Board indicated in Banner Health that confidentiality may be requested in specific situations, involving a case-by-case inquiry, such individualized determinations can be unworkable for a large employer that frequently and routinely conducts workplace investigations.

Next Steps.  Confronted with repeated Supreme Court decisions encouraging appropriate investigation of harassment complaints, and by the digital-age risk that employee comments and criticisms can be quickly disseminated world-wide, sophisticated employers have adopted policies designed to preserve some measure of confidentiality and privacy.  The NLRB’s enforcement of Section 7 rights threatens these policies, and it is not clear that the NLRB gave sufficient consideration to the countervailing employer concerns that justify these policies.  Some employers therefore are likely to challenge adverse NLRB decisions—as Boeing has indicated it will.  In the meantime, employers should consider reviewing existing policies and prohibitions to take into account the NLRB’s expansive view of Section 7 rights.  Any employee can challenge an employment decision that implicates Section 7 rights with the NLRB, and although the NLRB’s remedial powers are limited to ordering an employee’s reinstatement, rescinding policies, and other forms of non-monetary relief, such remedies can be costly and embarrassing for employers as they attempt to comply with the directives.

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Photo of Lindsay Burke Lindsay Burke

Lindsay Burke co-chairs the firm’s employment practice group and regularly advises U.S., international, and multinational employers on employee management issues and international HR compliance. Her practice includes advice pertaining to harassment, discrimination, leave, whistleblower, wage and hour, trade secret, and reduction-in-force issues arising…

Lindsay Burke co-chairs the firm’s employment practice group and regularly advises U.S., international, and multinational employers on employee management issues and international HR compliance. Her practice includes advice pertaining to harassment, discrimination, leave, whistleblower, wage and hour, trade secret, and reduction-in-force issues arising under federal and state laws, and she frequently partners with white collar colleagues to conduct internal investigations of executive misconduct and workplace culture assessments in the wake of the #MeToo movement. Recently, Lindsay has provided critical advice and guidance to employers grappling with COVID-19-related employment issues.

Lindsay guides employers through the process of hiring and terminating employees and managing their performance, including the drafting and review of employment agreements, restrictive covenant agreements, separation agreements, performance plans, and key employee policies and handbooks. She provides practical advice against the backdrop of the web of state and federal employment laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the False Claims Act, with the objective of minimizing the risk of employee litigation. When litigation looms, Lindsay relies on her experience as an employment litigator to offer employers strategic advice and assistance in responding to demand letters and agency charges.

Lindsay works frequently with the firm’s privacy, employee benefits and executive compensation, corporate, government contracts, and cybersecurity practice groups to ensure that all potential employment issues are addressed in matters handled by these groups. She also regularly provides U.S. employment law training, support, and assistance to start-ups, non-profits, and foreign parent companies opening affiliates in the U.S.